presented to: uncc students april 13, 2018 · 2018-04-23 · eb-1 •outstanding researchers,...
TRANSCRIPT
Presented to: UNCC Students
April 13, 2018
6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com
Based in Charlotte, North Carolina.
One of the largest immigration law firms in the Southeast.
Seven (7) immigration attorneys & twenty five plus (25+) paralegals/support staff.
Our clients include:
◦ Numerous NC colleges & universities
◦ Several NC healthcare systems
◦ One of the largest automotive suppliers in the world
◦ One of the largest electronic medical records companies in the U.S.
◦ The second largest public school system in NC
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BA & JD – Wake Forest University
Practicing Immigration & Visa Law since 1984
American Immigration Lawyers Association (AILA)
◦ Member since 1985◦ Carolinas Chapter President 1995 & 1996◦ Served on National Board of Directors
Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997
Member of Alliance of Business Immigration Lawyers (ABIL)
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B.S., Meredith College
J.D., Campbell University
Practicing Immigration & Visa Law since 2006
Ms. Barnette practices employment-based immigration law.
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B.A., Davidson College
J.D./M.A. (cum laude), University of Florida
Practicing Immigration & Visa Law since 2012
Mr. Hummel practices family-based and global immigration law.
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Introduction
Temporary Work Visas (including H-1B Visa)
“Green Card” Options, Process & Availability
The Era of President Trump
Questions & Answers
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Department of Homeland Security comprised of:
◦ US Citizenship & Immigration Services (“CIS”)
◦ US Immigration & Customs Enforcement (“ICE”)
◦ US Customs & Border Protection (“CBP”)
Department of State:
◦ Responsible for visa services at U.S. consulates abroad
Department of Labor:
◦ Administers Permanent Employment Certification Application process
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Two Visa Categories
Nonimmigrant – TemporaryImmigrant –
Permanent (Green Card)
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Non-immigrant Visa Type
Sponsorship Required Duration of Visa
Self Petition Work Permission Spousal Work Permission
H-1B Employer must sponsor and cover all
associated fees
Up to 6 years (longer in some
cases)
No Yes No, unless I-140 approval for H-1Bspouse (with EAD)
H-3 Trainee Employer must sponsor
Up to 2 years, no extension
No Employmentonly incidental
to training, stipend
No
J-1 Exchange Visitor
(Trainee/Intern)
Approved agency must sponsor
18 months (Trainee); 12
months (Intern)
No With DOS approval
Yes, with EAD
L-1A/L-1BIntracompany
Transferee
Employer must sponsor
Up to 7 years (L-1A) or 5years (L-1B)
No Yes Yes, with EAD
E-1/E-2 Treaty Trader/Investor
Employer must sponsor
Up to 5 years, renewable indefinitely
Yes- If owner of company
Yes Yes, with EAD
O-1 Extraordinary
Ability
Employer mustsponsor
Up to 3 yearsand extensions
possible
No Yes No
TN- NAFTA Employer must sponsor
Up to 3 years and extensions
possible
No Yes No
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B-1/B-2 (Visitor Visa/Visa Waiver)
F-1 (Student Visa)
H-3 & J-1 (Trainee Visas)
L-1 (IntracompanyTransferee)
E-1/E-2 (Treaty Visas)
O-1 (Extraordinary Ability)
TN-1 (NAFTA Professional)
H-1B (Professional)
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On March 9, 2016 USCIS announced a 24-month extension of post-completion OPT based on a STEM (Science, Technology, Engineering, or Math) degree
Employer must participate in E-Verify
Current list of eligible STEM degree is available online (www.ice.gov; 2012 was last revision); uses CIP code found on Form I-20
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Can base STEM OPT request on current or prior STEM degree
Requires employers to complete formal training plan with F-1 Student
File Form I-765 prior to post-completion EAD expiration
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Always employer-specific
May be position- and location-specific (depending on visa type)
Processing times for visa petition approval/visa issuance normally 120-240 days
Premium Processing Program - $1,225 secures 15-day review
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Position offered must require at least a Bachelor’s degree
FN must possess degree (or equivalent) related to position offered
Visa is location & job specific
Fees –◦ Government filing fees total $1710 (if less than 25 FTEs) or $2460 (if
more FTEs)
◦ Attys fees vary by firm
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Six (6) year limit (with exceptions) – granted in maximum of 3-year increments.
Employer must file petition, agree to pay “required wage” & return transportation costs upon termination.
FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability).
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Since 1990, annual cap on number of H-1B petitions which may be approved.
USCIS may only approve 65,000 visa petitions per fiscal year.
Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees.
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Filing period began April 2, 2018.
Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2019 (absent change in law).
USCIS suspended Premium Processing for all H-1B cap cases.
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Filing period began April 3, 2017.
On April 7, 2017, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap.
USCIS received approximately 199,000 total H-1B petitions for FY2018.
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The following are subject to annual cap:
◦ FNs seeking H status for 1st time.
◦ FNs changing from cap-exempt to cap-subject employer.
The following are NOT subject to annual cap:
◦ FNs currently in H-1B status (i.e., extensions of stay or change of employers) or FNs who have been previously counted against H-1B cap (if total of 6 years were not used up).
◦ FNs who work at institutions of higher education or nonprofit related to/affiliated with institutions of higher education or nonprofit/gov’t research organizations.
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Applies to F-1 students on OPT where H-1B petition accepted on or after April 1
Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date
Does not authorize travel
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E-1/E-2 - Treaty Trader/Treaty Investor
O-1 - Extraordinary Ability
TN - Treaty NAFTA
L-1 – Intracompany Transferee
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One does not need a visa status to own all or part of a U.S. company.
But… one does need a visa to work for a company.
USCIS wants to see an “employer-employee relationship” in connection with a visa petition/application.
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Five Ways to Qualify
Family Asylum Investment Diversity Lottery Employment
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•Outstanding Researchers, Extraordinary AbilityEB-1
•Advanced Degree Professionals and FNs of Exceptional AbilityEB-2
•Professionals, Skilled and Unskilled WorkersEB-3
•Special ImmigrantsEB-4
•Employment CreationEB-5
Five (5) employment-based categories:
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International Managers & Executives
Outstanding Professors & Researchers*
FNs of Extraordinary Ability *
◦ *USCIS regulations contain list of eligibility criteria
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To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent).
USCIS regulations set out criteria for exceptional ability.
Can bypass labor certification process by proving employment would serve U.S. “National Interest”
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For FN who possesses 4-year university degree where job offered requires degree; or
For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience.
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STEP 1 – Labor Certification (“PERM”)
◦ Requires proof of no minimally qualified available U.S. workers
◦ Current Processing times: 5 months if no DOL audit
◦ 8+ months if audited
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STEP 2 – Immigrant Petition, Form I-140
◦ Current processing times: Six (6) months +
Step 3 – Application for Adjust Status, Form I-485**
◦ Current Processing times: Up to nine (9) months
** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT
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EB-1
All Countries except
for India and China:
Current
India:
January 1, 2012
China:
January 1, 2012
EB-2
All Countries except
for India and China:
Current
India:
December 22,
2008
China:
August 1, 2014
EB-3
All Countries except
for India, China &
Philippines:
Current
India:
February 1, 2008
China:
June 1, 2015
EB-4
All Countries
expect Mexico,
El Salvador,
Honduras, and
Guatemala:
Current
EB-5
All Countries
except China:
Current
China:
July 22, 2014
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January 27, 2017 - President Trump signed an executive order halting refugee admission and barring people from seven countries:
◦ Iran, Iraq, Yemen, Libya, Sudan, Somalia, Syria
The order was immediately challenged in several Federal Courts. A nationwide injunction was issued on February 3, 2017.
February 9, 2017 - the 9th Circuit Court of Appeals ruled against the reinstatement of the travel ban.
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Ban 3.0 was announced September 24, 2017 and went into effect December 8, 2017
Covers:◦ North Korea and Syria- All immigrant and non-immigrant visas◦ Chad, Libya, and Yemen- All immigrants and non-immigrant
tourist and business travelers◦ Iran- All immigrants and non-immigrants except F, J, and M
visas (though with additional scrutiny)◦ Somalia- All immigrants. Non-immigrant visas will have
additional scrutiny;◦ Venezuela- a ban on non-immigrants visas for certain
government officials and their families
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◦ Applies to those outside the U.S. on the effective date without a valid visa
◦ Exceptions
lawful permanent residents
FN’s admitted or paroled in the U.S. on the effective date;
FN’s with valid travel documents
Dual Nationals
◦ In addition, there is a waiver process available
Must prove denial of entry would cause undue hardship;
Entry of the FN would not pose a threat to the U.S; and
Entry of the FN would be in the national interest.
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◦ Buy American and Hire American Executive Order
◦ Revocation of H-4 EADs
◦ Revocation of International Entrepreneur Parole
◦ Renegotiation of NAFTA
◦ Changes to the H-1B lottery System
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6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com